SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-14-99-3

DATE: 2015/10/22

RE: Justin Jerimah Lambert – Applicant v. Caitlin Shanda Limoges - Respondent

BEFORE: Kane J.

COUNSEL:
Deanna Paolucci, for the Applicant

Pamela Barron, for the Respondent

HEARD: October 7, 2015 (at Ottawa)

ENDORSEMENT

[1] This application by the applicant father was commenced on September 8, 2015 regarding the parties’ 4 year old daughter. The father seeks therein:

(a) Joint custody of the child with joint authority as to material decisions affecting the child’s welfare and exclusive authority to the father if the parents cannot agree;

(b) Primary residence with the father;

(c) The respondent mother to have supervised access of at least 1 day per week;

(d) The mother to pay child support to the father; and

(e) Enrollment of the child in pre-kindergarten at St. Patrick’s Elementary School in Rockland Ontario.

[2] Each parent has brought a motion both filed October 1, 2015.

[3] In his motion, the father seeks:

(a) Joint custody with primary residence of the child to be with the father;

(b) Generous access to the mother at a minimum of 2 days per week; and

(c) Registration of the child in St. Patrick’s School in Rockland where the father and his partner reside.

[4] In her procedural motion, the mother seeks:

(a) Leave based on urgency to dispense with a prior case conference;

(b) The immediate return of the child to the mother; and

(c) Police assistance if required to implement the above order.

Background

[5] Background facts include the following:

(a) The daughter, born August 11, 2011, is 4 years old;

(b) The parties lived in a common law relationship together with their daughter during approximately the first 26 months of the child’s life until they separated in September 2013;

(c) There is no order or written agreement regarding custody or access regarding the child;

(d) There allegedly is a January 2014 agreement that the father pay child support to the mother in the amount of $270 per month;

(e) The father is in a new common law relationship;

(f) Upon separation, the father returned to live in Rockland, some 30 kilometers from Ottawa. He and his partner commute to Ottawa for work;

(g) The mother following separation entered into a new common law relationship in which she and her partner have a currently new born child. The evidence indicates the mother and her partner separated in late August, 2015. There is no evidence whether they presently reside together;

(h) The father and his partner are employed. He earns approximately $36,700/year and is studying part-time to complete his high school education; and

(i) The mother’s source of income is Ontario Works, the amount of which is not in evidence.

[6] The mother does not allege that the child is not properly cared for by the father and his partner.

[7] The father disputes that the child is adequately cared for while with the mother.

[8] What brings the parties to court 2 years after being able to agree upon custody and access since separation in September 2013 is:

(a) The father’s ongoing concerns about the lack of stability and environment of the child’s life while residing with the mother and the events commencing in August 2015;

(b) The mother asking the father to take and care for the child in August 2015 and her subsequent agreement to have the child enrolled in full-day kindergarten starting September 2015; and

(c) The mother then insisting the child be returned to her primary care at the beginning of September 2015.

Legal Considerations

Children’s Law Reform Act, R.S.O. 1990, c. C. 12

[9] Under this Act:

(a) The mother and father are equally entitled to custody which obliges the parent to exercise responsibility to ensure the best interests of the child, s. 20(1) and (2).

(b) Upon separation, the habitual residence of the child with one parent on consent of the other parent, results in the suspension of the other parent’s right to exercise custody entitlement or the incidents thereof until a separation agreement or order provides otherwise, s. 20(4) and 22(2)(b).

(c) Custody and access are to be determined based on the best interests of the child which includes the needs and circumstances of the child, the length of time the child has lived in a stable home environment, the ability of each parent to provide the guidance, education and necessities of life, the stability of the home environments and the parenting abilities of each parent, s. 24.

(d) The court should not disturb the status quo on an interim basis except in emergency situations prior to a full hearing, s. 29.

[10] Evidence to change the status quo must be stronger than is required at trial to award custody: Brugger v. Casmey 2013 ONSC 932 at para 20.

[11] To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para 26.

[12] The status quo will be maintained absent compelling reasons demonstrating the necessity to change to meet the child’s best interest: Perchaluk v. Perchaluk, 2012 ONCJ 525, para 29.

[13] Frequent moves by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of the child: Madill v. Madill, 2014 ONSC 7227. (Interim Order)

Analysis

[14] The father has not by unilateral action altered or created the present residency of the child.

[15] After a week of the child being with the father, the mother on August 22, 2015 asked the father to care for the child as she had just broken her ankle. The father agreed to care for the child any days he and his partner were off work.

[16] On August 22, 2015, the child was to return to the mother. The mother announced however that she was stuck as she and her partner had broken up and that she had moved in with her mother where there was little room for the children and that she intended to remain there until she could find new living accommodation. The father asked if the mother was asking him to take over the care of the child. The mother responded yes, that that was in the best interests of the child at that point and that perhaps the mother could care for the child on weekends.

[17] The child resided almost exclusively with the father for the balance of August 2015. The father put daycare arrangements into place but that additional cost resulted in the parties agreeing to a reduction of his child support payments in the interim.

[18] The father on August 24, 2015, asked the mother for her consent to enroll the child in a full day junior kindergarten school in Rockland, starting in September 2015. The mother responded affirmatively that enrollment in that school would be “perfect”. The father proceeded to register the child in that program, which presumably reduced the father’s then costs for daycare.

[19] On August 25, 2015, the mother agreed to reimburse the father for his latest child support payment and transfer the September and October baby bonus cheques to him to assist in payment of child care costs.

[20] The parties arranged for the mother to have access with the child on August 30, 2015. The mother did not arrange to pick up the child however and could not be contacted. The father as a result spoke to the maternal grandmother who stated she too had been unable to contact the mother and feared the mother was consuming drugs again.

[21] On September 2, 2015, the mother advised the father that her “worker” had cleared her to have the child again, her ankle was determined not to be broken and that she accordingly had changed her position and now wanted the return of the child.

[22] The mother also reversed her decision and communicated her objection to the school that the child attend the JK program. Her objection prevented the child’s attendance since the start of September 2015 in JK.

[23] The above facts in isolation, although troubling, are insufficient to alter a status quo on an interim basis.

[24] Analysis must however include:

(a) Determination as to what was the status quo prior to mid-August 2015; and

(b) Consideration of other evidence not in dispute regarding the mother.

Status Quo before August 19, 2015

[25] The mother does not dispute the child resided with her father some 40 percent of the time from September 2013 until the end of 2014. She does not dispute that the child resided with her father often 4 days per week between January and August 2015.

[26] De facto custodial care and residence of this child prior to August 19, 2005 was with both parents and slightly more with the father during the last 8 months since January 1, 2015, independent of the mother’s break up with her boyfriend and the injury to her ankle.

[27] Given her circumstances, the mother in late August 2015 agreed that the child’s best interests would have her living with her father some 5 out of 7 days, at least throughout September and October of 2015. It is now in the mother’s interest to change that position given her new diagnosis and the temporary new accommodation she obtained.

[28] Those changes to the mother do not address what is in the interim best interests of the child who for the last 2 months has resided primarily with her father, his partner, been introduced to new daycare providers, told she is about to commence JK school and then explained there is a problem and she cannot do so.

Additional Considerations

[29] The mother in her two affidavits does not dispute the allegations that:

(a) The child attended daycare while in her mother’s care for at least some of the period between September of 2013 and 2015;

(b) She called the paternal grandfather on or about September 1, 2015, at 2 a.m., said she was looking for cocaine and asked if he as a former drug user could refer her to a cocaine dealer. She also asked in the same call if he could then come over at 2 a.m. and help her move to a new residence. The mother’s response to this allegation is that she used drugs in the past but is not addicted and has not used drugs for several months and has not used them while caring for the child. In summary, she does not deny her attempt to access cocaine 1 month ago. The maternal grandmother’s instinct seems to have some merit.

(c) As to this child, the CAS had some limited involvement with this mother. Care as to this allegation is required as the father’s partner works for CAS and is adverse in interest to the mother. In addition, the father admits CAS took no action in any of the four occasions when they spoke to the mother. The occasions allegedly involve two occasions as to possible drug use in the period of January to July 2014 while the mother was living with the child in a shelter. The two other occasions in November 2014 and May 2015 involved alleged instances of a domestic assault between the mother and her then partner.

(d) The mother has moved frequently since September, 2013 when the father moved out. Care again is needed as poverty does not equate to a lack of parental capacity. Level of wealth is not the test. The mother admits she had to move in September 2013 because the father moved out, she was not working, could not pay the rent and was forced to move. She stayed with a friend for a brief period and then moved into a shelter for some 6 months with the child awaiting public housing. She moved into a public housing unit where she stayed for approximately 1 year and states it was infested with cockroaches which is allegedly why she moved in with her mother after breaking up with her partner. She then moved to her current residence where she intends to reside until public housing can provide her with a townhouse. Frequent moves for young children are not ideal. Dependency on accessing public housing for unemployed single parents after a separation often necessitates several moves.

(e) The mother throughout the last 2 years has not promptly provided the father with her current address and telephone number. That restricted the father’s knowledge as to where the child lived and access to his daughter. That is contrary to the interests of the child. The mother should not be alleging paranoia against others.

(f) There was at least one occasion when the father picked up the child who had a fever and was then taken by the father to a doctor. The diagnosis was that the child had a lung, urine, and chest and ear infection.

[30] There are no allegations as to the lack of care or priority of the child while in her father’s care.

[31] Notwithstanding the above, the father in his relief acknowledges that the mother should have generous access of at least 2 days per week.

[32] Early education is beneficial to the child which this mother agreed to and then blocked for her own purpose. Junior kindergarten may also be about reducing parental daycare costs.

[33] The mother is technically accurate as to this proceeding being brought in L’Orignal versus Ottawa where she resides and the father attends daily for work.

[34] The allegation is that both Ottawa counsel originally, and practically, agreed it made more sense to proceed in Ottawa. Part of that practical approach is because the mother has no transportation, limited funds and the necessity for her court attendance in L’Orignal therefore makes no sense and should be avoided. Despite that, the mother’s counsel elected to introduce the issue which this court rejects as determinative.

[35] Balancing the above factors, this court concludes there is currently more stability and resources to benefit the child living with her father. The mother’s historical use of cocaine or drugs requires further consideration and determination.

[36] The court therefore makes the following interim orders:

1. The parties will have joint interim custody. The father however shall have sole authority as to the health and education of the child.

2. The principal residence of the child shall be with the father.

3. The child shall reside with each parent on the following 2 week rotation:

(a) Week 1: With the father from 6 p.m. Sunday until 6 p.m. Wednesday, then with the mother from 6 p.m. Wednesday until 6 p.m. Friday and with the father from 6 p.m. Friday and throughout the weekend including Sunday night.

(b) Week 2: All Monday through and until 6 p.m. on Thursday with the father and then with the mother from Thursday at 6 p.m. until Sunday at 6 p.m.

4. The father is responsible for transporting the child to and from the mother’s residence until it is determined whether the mother has transportation capability in which case it shall be shared equally.

5. The father’s liability to pay child support is terminated effective August 30, 2015. FRO is directed to halt recovery of child support arrears from the father until a further court order. That will require evidence as to how much time the child since September 2013 resided with each parent and their respective income levels during that period.

6. The parties within the next 30 days will provide one another with a copy of their 2013 and 2014 income tax returns and Notices of Assessments to permit the above calculations to be made.

Costs

[37] The court’s inclination is there should be no order as to costs, given the absence of a custody agreement or prior order and the limited financial capacity of the parties.

[38] Any party seeking costs however may submit brief written argument within 30 days from the date hereof. That may be replied to within 20 days thereafter.

Kane J.

Released: October 22, 2015

COURT FILE NO.: FC-14-99-3

DATE: 2015/10/22

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Justin Jerimah Lambert – Applicant

AND Caitlin Shanda Limoges - Respondent

BEFORE: Kane J.

COUNSEL: Deanna Paolucci, for the Applicant

Pamela Barron, for the Respondent

ENDORSEMENT

Kane J.

Released: October 22, 2015